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BMO employee gets 68 weeks pay, but not her job back: Smolkin

The Bank of Montreal agreed that the dismissal of Welland branch employee was unjust, but even though she got more than a year’s pay she won’t be returning to work.

By Sheryl Smolkin Special to The Star

Wed., Feb. 13, 2013

Wrongfully dismissed non-union employees working for federally-regulated businesses like banks, railways or airlines have an advantage over other Ontario workers.

They can ask for their job back as well as damages for lost wages. However, even if they win a cash award, it’s possible they will never return to work.

Here’s a case that illustrates the point.

Alexandra Karatopis Sherman had worked for the Bank of Montreal in Welland for 20 years, when beginning in 2007 her manager Molly Heise began pointing out problems with her work.

Sherman was a senior customer service rep and the allegations included negligence resulting in potential losses to the bank of over $100,000. There was an actual loss of $7,500 because she didn’t verify bank drafts coing into the branch issued by other banks.

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Sherman complained to her area manager that Heise was harassing her, but the bank did not investigate her claim. She was fired in October 2009.

She filed a claim under the Canada Labour Code seeking damages for wrongful dismissal and also asking for her job back. Before the hearing, BMO agreed Sherman was unjustly fired and paid her salary for 68 weeks. However the hearing went ahead anyway because she wanted a bigger settlement and reinstatement.

The adjudicator David Murray looked at a number of factors including the relationship between Sherman and her managers and also whether the bank’s trust in her had been undermined. He also considered whether Sharman had been at fault, even though it may not have been enough to justify her dismissal.

He concluded that the relationship between Sherman and her manager Heise was poor and that Sherman’s “faults were significant” and that her record will travel with her to the next BMO posting. However, he ordered BMO to offer her a job at a branch not more than 50 km from her home.

BMO appealed the decision to the Federal Court and in a December 2012 decision, Justice Michael Manson sided with the bank and reversed the reinstatement order.

He noted that $7,500 was lost due to Sherman’s negligence and she had been ordered her to repay this amount to the bank. He also referred to evidence that no other southern Ontario branch could hire her unless someone else was laid off.

Furthermore, Justice Manson said that once BMO agreed the dismissal was improper, reinstatement should not have been used as a tool to punish the bank for the mishandling of Sherman’s claim.

Nevertheless, based on Sherman’s 22 years with BMO, the Judge sent the case back to the Adjudicator to decide if the 68 weeks of compensation paid was sufficient. He also ordered BMO to give Sherman a reference stating she performed in a satisfactory manner during her career with the bank.

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